The Benghazi suspect: What's next

The alleged perpetrator of the Benghazi attacks seized in Libya by a U.S. military and law enforcement team will face charges in federal criminal court, Obama administration officials made clear Tuesday, rebuffing suggestions from Republican lawmakers for a military trial at Guantanamo.

The handling of Ahmed Abu Khatallah is likely to unfold according to an established administration script followed in other terrorism cases: he’ll be interrogated for several days, likely aboard a U.S. ship, and then brought to the United States for a trial in a civilian court.

“Ahmed Abu Khattala should be held at Guantanamo as a potential enemy combatant,” Sen. Lindsey Graham (R-S.C.) wrote on Twitter Tuesday. “Holding Khattala on a ship shows the haphazard approach which comes from not having rational detention & interrogation policies.”

Sen. Marco Rubio (R-Fla.) also said the administration should “immediately” transfer Khatalla to Gitmo. “In order to locate all individuals associated with the attacks that led to the deaths of four Americans, we need intelligence,” he said in a statement. “That intelligence is often obtained through an interrogation process.”

Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) said the argument that Khattala should be sent to Guantanamo “is the easy way out.”

“I look forward to his prosecution in the U.S. court system,” Leahy said in a statement. “…We will try Khattala just as we have successfully tried more than 500 terrorism suspects since 9/11.”

While moving a terrorism suspect to a ship is rare, it has become something of a pattern under the Obama administration.

Just last year, a U.S. military and law enforcement team captured alleged Al Qaeda member Anu Abas Al-Liby in Libya and delivered him to an American ship in the Mediterranean. He spent just over a week there and was questioned before being flown to New York to be arraigned on charges relating to the bombings of U.S. embassies in Kenya and Tanzania

In 2011, the Obama administration took a similar tack with Somali Ahmed Warsame, capturing him aboard a fishing vessel in the Gulf of Aden and holding him aboard a U.S. ship for two months before sending him to New York to face criminal charges. Soon thereafter, he pled guilty to acting as an intermediary between Al-Shabaab and Al Qaeda.

Khatallah is also likely to be interrogated, but holding him on a ship and questioning him without providing Miranda rights has potential legal fallout.

While the administration has claimed broad authority to question suspects about potential future attacks without reading them their rights, the courts haven’t made clear how far that authority extends and when statements made under those conditions would be admissible. Officials have also claimed the authority to hold suspects like Al-Liby under the Authorization for Use of Military Force passed after the September 11 attacks.

Khatallah’s case involves a twist not present in the prior two cases: his ties to Al Qaeda are more ambiguous. Indeed, the lack of a known Al Qaeda connection led the administration to conclude that it could not use armed drones to attack him or other alleged perpetrators of the Benghazi attack.

“The individuals related in the Benghazi attack, those that we believe were either participants or leadership of it, are not authorized use of military force,” Joint Chiefs Chairman Gen. Martin Dempsey testified at House hearing on Benghazi last year. “They don’t fall under the AUMF authorized by the Congress of the United States. So we would not have the capability to simply find them and kill them, either with a remotely-piloted aircraft or with an assault on the ground. Therefore, they will have to be captured, and we would, when asked, provide capture options to do that.”